On August 28, 2013, Governor Chris Christie signed A-2878, a law that prevents NJ-based employers from requiring, or requesting, a current or prospective employee to provide or disclose a user name or password to his or her personal account or provide the employer with access to same.
With a few exceptions, the new law applies to all New Jersey employers, regardless of size.
The new law also prohibits retaliation or discrimination against employees who:
- refuse to provide access to a personal account,
- report an alleged violation to the Commissioner of Labor and Workforce Development (“Commissioner”),
- testify, assist, or participate in any investigation, proceeding or action concerning alleged violations of the act, or
- or otherwise oppose a violation of the law.
An earlier draft of A-2878 incorporated a prohibition on employers from inquiring whether employees or applicants have a social media account, but Governor Christie struck that language as part of his conditional veto. Significantly, the new law does not prevent employers from performing their own online search to determine if a prospective or current employee is on a social media.
The new law, which takes effect on December 1, 2013, authorizes aggrieved persons to report violations to the Commissioner. Unlike the previously vetoed version of the bill, the new law does not create a right by such persons to commence a civil action for damages against the offending employer.
New Jersey joins California, Delaware, and more than 10 other states which have enacted legislation preventing employers from requesting social media information. Similar legislation is currently pending in the State of New York.
In view of the new statute, New Jersey employers should re-examine their employment and pre-employment practices concerning requests for disclosure/ access to a personal social media account.